8. The construction and maintenance of con- necting ditches through and across the lands of adjoining owners, for the purpose of draining and discharging the surface water into a creek below, and the use and en- joyment thereof for the period of more than twenty years creates no right or easement by prescription to have the ditches kept open for the discharge of the water over the land of the lower proprietor. The draining of the upper lands through the ditch being by the license or permission of the owner the use or enjoyment was not adverse, and consequently could not ripen into a right by prescription.-White v. Shel- don, 548.
EMINENT DOMAIN.
1. When a person whose lands are sought to be condemned by a railroad company under the general railroad act makes an issue for trial it is improper to appoint commis- sioners to condemn said land until the route of said road is finally located, and an allegation in the answer of the party whose land is sought to be condemned that it is not the intention of said railroad company in good faith to construct said proposed road puts the burden of proof on the petitioner. In re application of the S. I. R. T. RR. Co. v. Bechtel, 15.
2. Before confirmation of the commissioner's report in railway condemnation proceed- ings motion may properly be made by the railway company to discontinue the pro- ceedings, and the court in granting it may annex such terms as justice requires.-In re application of the N. Y., W. S. & B.RR. Co. v. Thorne et al., 128.
3. A general land agent having charge of the subject of purchasing lands for all the pur- poses of a railroad corporation must be re- garded as an officer of the corporation hav- ing the right to verify petitions in proceed- ings to acquire title to lands.-In re appli- cation of the N. Y., L. & W. RR. Co. v. Scheu et al., 194.
4. Notice of the proposed route need not be given to owners of land required for other purposes than the construction of the em- bankment and the laying of the rails.-Id.
5. Where the Common Council of a city in authorizing the construction of a railroad through its streets required the company to construct a swing bridge across a canal, to do which it became necessary to obtain land over which to swing the bridge when open, Held, that the company could acquire title to such lands under the general statute. -Id.
6. On the trial before the commissioners the land owner has the right to open and close. -Id.
7. It is not error for the commissioners, after the submission of the case, to view the premises a second time in the absence of counsel.-Id.
8. The measure of damages for property taken for railroad purposes is its fair market value based on existing conditions and not on speculations of future developments.- In re petition of the N. Y., L. & W. RR. Co. v. Bennet et al., 212.
9. Where the parties have made a contract of bargain and sale of the premises, leaving the question of consideration to be decided by certain commissioners named, who are to proceed under the statute, and the con- tract reserves to the parties the right to ap- peal from their decision, Held, That the court upon setting aside the award on ap- peal cannot direct the appointment of new commissioners.-Id.
10. To authorize a reversal of the awards of commissioners appointed to appraise the value of lands condemned for railroad pur- poses, they must be so grossly unequal and inadequate as to warrant the conclusion that the commissioners proceeded upon a wrong principle or acted corruptly in awarding damages. The court will refuse to require the commissioners to reconsider their report upon the weight of evidence or questions of value, unless the facts are of so decisive a character as to be almost con- clusive. In re application of the N. Y. C. & H. R. RR. Co., v. Pierce et al., 405.
11. The owner or lessee of the premises is not entitled to compensation for the expense of removal of the personal property thereon. -Id.
12. Where, in proceedings to condemn land for a railroad, the commissioners allow a witness for the company to testify, against the owner's objection, that the value of the portion not taken would be advanced by the proposed improvements, it is error. And the error is not cured by a statement of the commissioners in their report, that in fixing the amount of compensation that should be awarded they did not make any allowance or deduction on account of any real or supposed benefits which the owner might derive from the construction of the road.— In re application of the N. Y., W. S. & B. RR. Co. v. Sutherland, 434.
13. Where, on taking land for railroad pur- poses, an award was made to the city which was paid to the chamberlain as directed, Held, That he was only a depositary, and that in the absence of proof that the city had taken or used the money his receipt
thereof could not be held a waiver of the right to appeal.-In re petition of the N. Y. & H. RR. Co., 466.
14. An order of General Term, reversing an order of confirmation of the report of com- missioners of appraisal, and directing a new appraisal before new commissioners, is not final, and no appeal lies therefrom to the Court of Appeals.-Id.
1. The mere fact that a justice of the peace failed in his return to a writ of certiorari to include the oral examination taken on the criminal complaint will not estop him, in a subsequent action for false imprison- ment, from showing that such examination was taken. Mixter v. Bronner, 241.
2. The acceptance of payment of a claim against a county in the amount audited by the Board of Supervisors thereof is a waiver by the claimant of any right to further prosecute the same.-The People ex rel. Mc- Donough v. The Board of Suprs. of Queens Co., 312.
3. A person who has induced another to ad- minister upon the estate of an intestate by the declaration of such person that she had been divorced from the deceased and was married to another person and had no in- terest in the estate of the deceased, is estop- ped from denying the truth of such declara- tions when the consequence would be to work an injury to the person so adminis- tering.—In re accounting of Rusko, 408.
4. That an offer has been made, by way of compromise, to accept a less sum in satisfac- tion of a claim, which sum has not been paid, is no defense to an action for the whole amount of the claim.-Ryan v. Burnham, 536.
5. Such offer does not estop the party making it from claiming the whole amount due him where it does not appear that the party to whom the offer was made has acted on it to his injury.—Id.
See APPEAL, 2; CONTRACT, 11; FIRE IN- SURANCE, 1, 6, 8; HIGHWAYS, 11; PART- NERSHIP, TOWN BONDS, 7.
1. Where the question is whether a certain transaction amounted to a purchase or a
payment of a note, the intent of either of the parties is immaterial, except as it was communicated to the other at the time. — Madden v. Benedict, 30.
2. The liability of one of the makers of a sev- eral note to the holder is not affected by the equities of the makers as between them- selves.-Id.
3. A party by cross-examining his opponent's witnesses in reference to the same matter embraced in the direct-examination does not make them his own, but is entitled to call witnesses to contradict them. So held, where defendant put questions to plaintiff's witnesses based upon assumed facts which varied in some particulars from those em- braced in plaintiff's hypothetical questions, and they gave their opinions as to the value of the services upon such assumed facts.- Tucker v. Ely, 66.
Where, in a suit originally commenced in justice's court, plaintiff gave evidence as to value, defendant was held entitled to give evidence in rebuttal though the question of value was not put in issue by the answer.- Id.
5. In an action to recover for goods delivered under a contract the defendant set up fraud as a defense and proved that the agent em- ployed to sell the goods to the city made offers of money to one C. to procure his friendly offices to aid in introducing them. This was objected to as the declarations of a stranger, and that it was so far removed from the scope of the agency as to be inad- missible against plaintiff, the assignee of the claim. The objection was overruled. Held, Error.-Baird v. The Mayor, &c., of N. Y., 100.
6. In an action to recover money loaned, plaintiff put in evidence an envelope on which was endorsed the date of the loan, defendant's name and address, the terms of the loan and a list of the collaterals. The indorsement contained no promise to pay. Held, That the indorsement did not state sufficient to constitute a complete contract and that the evidence tending to show that defendant's name was written on the envel- ope after the loan was made on collaterals belonging to other parties was admissible. -The Union Trust Co. v. Whiton, 106.
7. The existence of a custom cannot overrule the terms of a contract ambiguous on its face and the explanation by parol evidence showing what the parties really intended.— Id.
8. Communications which may fairly be said to have been induced by the previous rela- tionship of attorney and client are privi- leged. Meyers v. Doeman, 111.
9. In an action to recover damages for a breach of contract to furnish a portion of the money required for the purchase of
certain mining property, the privilege of purchasing which within a certain time was held by plaintiff, which privilege he lost on account of the defendant's failure to per- form is contract, it was proved that on the day set for purchasing the property, a por- tion of which defendant was to receive, de- fendant refused to perform upon the ground that there were defects in the title, and that thereupon an extension of time was procured for the purpose of removing such defects. It was then offered to be shown that in the interval an arrangement was effected obviating the objection. This evidence was excluded. Held, Error.- Selover v. Chaffee, 115.
10. It was also shown that at one time plain- tiff had offered to relieve defendant of his contract and defendant had declined to give it up. Plaintiff was then asked whether at that time he could have raised the money necessary to purchase the property else- where if defendant had given up his con- tract. This was excluded. Held, Error.- Id.
11. A propeller, in trying to reach her dock without a tug collided with a canal-boat. Held, Error to admit evidence that the pro- peller, after the accident, hired a tug to assist her to her dock, and to admit evi- dence to prove that it was not the custom to obey an ordinance as to keeping a light on canal boats.-Case v. Perew, 131.
12. The defendant, being absent from the trial, may insist that plaintiff must establish his case by legal evidence.-Hawley v. The P., T. & B. RR. Co., 142.
13. Plaintiff's cows were injured by defend- aut's trains and engines, and plaintiff was permitted to state his opinion of his loss in reduced production of butter resulting therefrom, without giving his data for his opinion. Held, Error.-Id.
14. If there is enough legal evidence to sus- tain a judgment it should not be reversed because incompetent evidence of a cumu- lative character was received.-Shehan v. Johnson, 157.
15. In an action for goods sold and delivered a witness testified that during a specified time defendant bought goods of plaintiff to a specified amount; that she had made cer- tain payments, and that there was a certain balance due. He then identified a copy of the account, which was read in evidence. Held, That the admission of the account was not error calling for reversal, as there was sufficient evidence without it to estab- lish plaintiff's cause of action.-ld.
16. Where plaintiff relies wholly upon the testimony of himself and his wife, defend- ant has the right to demand that their evi- dence, though uncontradicted, should be passed upon by the jury.-Longyear v. The U. S. Life Ins. Co., 165.
17. An answer given by a party in supple- mentary proceedings prior to September 1, 1880, may be used as evidence against him. -Bush v. Preston et al., 190.
18. Evidence that a witness has been con- victed of being drunk and disorderly is ad- missible as affecting his credibility.-The People v. Burns, 197.
19. The admission, against objection, of a party's declarations in his own favor made to an employee of his adversary, who had no authority to bind him by his answers, is such an error calculated to influence the jury and prejudice the adversary's case as calls for a reversal of the judgment, al- though the question put did not call for the whole conversation, and no objection was made to the admission of the employee's answers against his employer's interest.- Gilbert v. Manning, 206.
20. A judgment roll not certified as a whole, but the separate parts of which were each certified to be a true and correct copy of the original on file, no statement being made therein that the copies were compared with the original, and accompanied by no cer- tificate of a judge authenticating the clerk's attestation, is not properly authenticated and is inadmissible.-Humaston et al. v. Beekman, 238.
21. Under a stipulation allowing either party to read the testimony of any and all wit- nesses given on the trial of an action brought by another person in reference to the same action, either party reserving the right to recall any of said witnesses and to call others, no objections can be taken to the testimony so read that were not taken on the trial of the other action, and a party reading the direct-examination of a witness may also read the cross-examination where his adversary omits to do so.-Burgess v. The N. Y. C. & H. R. RR. Co., 249.
22. Evidence that there was no gate across the highway is admissible as descriptive of the situation.-Id.
23. In an action by a husband, as adminis- trator, to recover damages for the death of his wife, in a case where she left no sur vivors but himself and her mother, evidence as to the means or property of the mother is irrelevant and inadmissible.—Malonee v. The N. Y. C. & H. R. RR. Co., 252.
24. The erroneous admission of such evi- dence is not cured by a charge to the jury to assess such damages as would pay plain- tiff for his actual pecuniary loss, without instructing the jury to disregard such evi- dence.-Id.
25. Entries in a train sheet of a railroad com- pany as to the passage of trains at a sta- tion other than that at which it is kept are not admissible against strangers unless veri-
fied by the station-man and telegraph op- erator at the station in question.-Graville v. The N. Y. C. & H. R. RR. Co., 257.
26. In an action to recover for services as hostler, plaintiff claimed and gave evidence tending to prove that he was employed at $20 per month. Defendant denied this aud testified that he had previously employed plaintiff at $10 and made no other agree- ment. He then offered to show a general custom at hotels for hostlers to receive scale money, and that this formed part of their compensation. The offer was jected. Held, Error; that if such usage existed the parties may be presumed to have contracted with reference to it and there was no such clear proof of a special con- tract in conflict with the usage as justified the rejection.—Jonsson v. Thompson, 269.
27. An offer of a certificate of stock for sale at auction where no bid was made for it is immaterial to show that the actual value of the stock was below par, and the opinion of a witness, based on such facts, is incom- petent.-Hanna v. Sandford, 288.
28. To prove the value of stock which has no market value it is competent to show that the company which issued the stock has continued in business and employed a large number of men, and has been in fair credit, and that the property is valuable and the stock has been considered valuable up to the time of the inquiry.-Id.
29. Whether a man is a skillful mechanic or not is a fact as to which those who have knowledge may testify.-Wheeler v. The D. & H. C. Co., 301.
30. Hypothetical questions must be based on facts admitted or established by the evi- dence, or which, if controverted, the jury might legitimately find. Purely imaginary or abstract questions, assuming facts for which there is no foundation in the evi- dence, are not admissible as matter of right. The People v. Augsbury, 307.
31. The allowance of such a question on cross-examination to test the knowledge or information of a witness rests in the dis- cretion of the court.-Id.
32. In an action to recover damages for the pecuniary loss to the next of kin of a per- son whose death has been caused by the negligence of a party, it is proper to show the number, age, sex and condition of health of the children of deceased; and while it is true that the statute only pro- vides for pecuniary loss to the next of kin, and that such loss is independent of the fact of the sickness or health of the next of kin, yet the evidence is admissible to show the condition of the family of the deceased as a basis for the jury.-Lockwood v. The N. Y., L. E. & W. RR. Co., 341.
33. The feeling of a witness toward the party calling him or adverse to the party against whom he is called, is always material, but the rejection of testimony to show feeling of hostility upon the part of the witness is not error unless such evidence be direct and positive.-Teets v. The Village of Mid- dletown, 347.
34. The declarations of an assignor made be- fore the assignment and not forming a part of the res gesta, are not competent against the assignee.-Vidvard et al. v. Powers et al., 359.
35. Expert evidence is not admissible on the question whether a certain day was a proper one for burning a fallow. Where the facts are of such a nature that jurors generally are just as competent to form opinions and draw inferences from them as witnesses, there is no occasion to resort to expert evi- dence. Ferguson v. Hubbell, 386.
36. In order to obviate an erroneous instruc- tion upon a material point, the withdrawal must be absolute and in such explicit terms as to preclude the inference that the jury may have been influenced thereby.-The People v. Kelly, 395.
37. It is error to instruct the jury that an alibi is a species of defense that the law looks upon generally with suspicion.-Id. 38. Upon the denial of a witness that he had been convicted of a certain offense, it may be proven by the record.-Id.
39. Declarations made in the presence of a party are received, not as evidence in them- selves, but for the purpose of enabling the jury to determine whether or not a reply was called for, and if called for, was it the intention of the party by his silence to acquiesce in the truthfulness of the state- ment.-McCusker v. Carlson, 424.
40. Where, therefore, a jury asked the justice whether, when plaintiff said that the brick did not come out as recommended and de- fendant kept silent, they should construe his silence as an admission that he had recommended the brick, and the justice answered "No," Held, That the reply was correct as far as it went; that the court could not charge as a matter of law that defendant's silence amounted to an admis- sion.-Id.
41. An admission contained in a verified answer of the defendant in a previous suit in which the complaint was dismissed by default is as admissible against his execu- tor in a subsequent suit involving the same matters as it would have been against him- self had he survived and been a party de- fendant.-Miller v. McGuckin et al., 429.
42. The evidence of a deceased witness can- not be read in any subsequent portion of
the proceedings against a party who did not have the right to cross-examine him when the evidence was given.-Id.
43. Where a witness testified that a marriage certificate was given her at the time of the marriage, and immediately after said it was given to her afterward, and the referee overruled an objection made to its admis- sion in evidence, Held, That the referee was warranted in understanding the wit- ness in the former sense, and that the gen- eral objection was not sufficient to raise the question.-Wingate v. Haskins, 438. 44. And although it appeared, upon cross- examination, that the certificate was not competent evidence, either under the Code (928) or at common law, yet, as defendant failed to move to strike it out, but per- mitted it to stand upon the record, he can- not ask the court to disregard it by reason of his objection made to it on the direct examination.--Id.
45. And although the certificate was not made in conformity to the statute, still if it was an original certificate given at the time of the marriage in the presence of the parties, as it was doubtless understood to be at the time of its admission in evidence, it was competent at common law as part of the res gesta.-Id.
46. In actions for injuries caused by negli- gence, evidence as to the value of plaintiff's services at the time of the injury is compe- tent.-Campbell v. The City of Syracuse, 449. 47. While a party may not impeach a witness called by him, he may prove a fact contrary to the recollection of such witness.-Id.
48. Where incompetent evidence has been volunteered by the witness the only way in which it can be expunged from the record is by motion to strike out.-Fowler v. The Howe Mach. Co., 521.
49. The execution and delivery of a receipt given for money paid by defendant's intes- tate to the plaintiff being a personal trans- action or communication with the deceased within the meaning of § 829 of the Code, plaintiff is not a competent witness to tes- tify that the words, "in full of all demands of whatsoever kind up to date," were not in the receipt at the time she signed and de- livered it to the deceased.-Boughton v. Bogardus, 537.
50. Evidence bearing on the question of mo- tive and intent is not incompetent because it may charge the party with official delin- quency, and might go in support of a charge for another crime.-The People v. Dewey, 555.
51. Admissions of a former owner of a note affecting its validity cannot be given in evidence against parties who acquired title to such note from him subsequent to its
maturity, and who are proceeding for its recovery.-Leonard et al. v. Demerritt, 558.
52. In an action against an executor it ap- peared that the parties had had an inter- view. Defendant testified that deceased's account book was present and referred to at the interview. Plaintiff denied that it was shown to him. The book was admit- ted in evidence. Held, No error.- Wil- liams v. Davis, 572.
53. A plaintiff is incompetent under § 829 of the Code to testify that an account set up by an executor as a counterclaim has been paid.-Id.
See ABANDONMENT, 3; ANIMALS, 4; ATTACH- MENT, 4; ATTORNEYS, 4; BANKS, 3; BLACK- MAIL, 2; BROKERS, 4; BURGLARY; CIVIL DAMAGE ACT, 7; CONTRACT, 3, 9, 26; CRIMINAL LAW, 2: FIRE INS., 12; FOR- GERY, 5; HIGHWAYS, 3, 9; INFANTS, 1, 2; JUDGMENT, 4; LIBEL; MORTGAGE, 17; MUNICIPAL CORPORATIONS, 2; MURDER, 1-3, 9; NEGLIGENCE, 12, 25; NEGOTIABLE PAPER, 1, 4, 5; PARTNERSHIP, 3-5; RAIL- ROADS, 12; RECORD, 1; SURETYSHIP, 4; TRADE SECRET, 3; TRESPASS, 1, 5; TRUST, 1.
1. For the purposes of a civil action for a penalty for selling intoxicating liquors without a license a sale by an agent in the shop of his principal, or by a servant in the shop of his master, is prima facie a sale by the principal or master.-Overseers of the Poor v. Kall, 33.
2. The summons was indorsed thus: "This summons is issued to collect penalties for violations of Sections 13 and 14 of the act to suppress intemperance, and to regulate the sale of intoxicating liquors, passed April 16, 1857, and the acts amendatory thereof, November 24, 1880. N. B. Packard, Jus- tice of the Peace." Held, To be a sufficient compliance with 1897 of Code of Civ. Proc.-Overseers of the Poor v. McCann, 114.
3. The provisions of the statute respecting the indorsement do not apply to the com- plaint. The sufficiency of the latter is to be tested by the rules of pleading.—Id.
4. Testimony that the witness bought cider of defendant, and was partially intoxicated by drinking several glasses of it, is enough to bring the case within the prohibition of the excise law. -Id.
5. Calling for liquor and drinking it on the premises is prima facie evidence of a sale.— The Board of Excise v. Merchant, 132.
6. The omission to have an excise commis- sioner's bond approved, at the utmost, affords cause for forfeiture of the office, but does not create a vacancy; that can only be
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